Citation Nr: 1714349
Decision Date: 05/02/17 Archive Date: 05/11/17
DOCKET NO. 12-01 049 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for a right ankle disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Gallagher, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1955 to October 1958.
This appeal is before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO).
In June 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file.
The issue on appeal, along with entitlement to service connection for bilateral hearing loss, was originally before the Board in August 2014. At that time, the Board denied an increased rating prior to December 18, 2013, and remanded the claim with respect to the period thereafter with instruction to obtain outstanding treatment records and schedule the Veteran for another VA examination. The relevant VA records were obtained and a VA examination was conducted in July 2015. Additionally, a September 2015 rating decision granted service connection for bilateral hearing loss, and that issue is no longer before the Board. With respect to the period prior to December 18, 2013, the Veteran appealed the Board's August 2014 denial to the United States Court of Appeal for Veterans Claims (Court), which vacated and remanded the denial in September 2015 memorandum decision. In February 2016, the Board remanded the increased rating issue for the entirety of the appeal period with instruction to obtain an adequate opinion from the VA examiner. Such an opinion was obtained from the VA examiner in April 2016. The Board is therefore satisfied that the instructions in its remands of August 2014 and February 2016 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDING OF FACT
The Veteran's right ankle disability is productive of moderate limited motion but not ankylosis, malunion, astralagectomy, marked limited motion, or the functional equivalent thereof.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, no notice was supplied to the Veteran at the time he submitted his August 2013 claim. The Board concludes, however, that the Veteran was provided the necessary notice both before and after this time, specifically in a September 2009 letter in conjunction with a prior increased rating claim for the same disability and in his March 2014 statement of the case. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained.
The Veteran was provided VA examinations of his ankle in December 2013 and in July 2015, with a follow-up opinion obtained in April 2016. The Board finds that these examinations and their associated reports, taken together, were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).
Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Merits
The Veteran claims an evaluation in excess of 10 percent for a right ankle disability.
Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.
In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.
When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Ratings under this code are available at 10 percent for moderate limited motion and 20 percent for marked limited motion. While the schedule of ratings does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k.
Alternative and additional Diagnostic Codes for the ankle are available under 38 C.F.R. § 4.71a, as follows:
Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. As the Veteran is in receipt of a 10 percent rating based on limitation of motion, higher ratings based on these criteria are not available for the Veteran.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees is rated at 20 percent; ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees is rated at 30 percent; and ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity is rated at 40 percent.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint is rated at 10 percent for ankylosis in good weight-bearing position and at 20 percent for ankylosis in poor weight-bearing position.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5273, malunion of the os calcis or astralagus is rated at 10 percent for moderate deformity and 20 percent for marked deformity.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5274, astragalectomy is rated at 20 percent.
In his August 2013 claim, the Veteran reported that his right ankle disability had worsened.
The Veteran underwent a VA examination in December 2013. He reported constant throbbing pain in the lateral aspect of the right ankle, worsened by standing for 15-20 minutes. He stated he is unable to walk more than 150 feet before he has to stop and rest. He denied flare-ups. He reported regular use of a brace and a cane. On examination, plantar flexion was full to 45 degrees with pain at 35 degrees and dorsiflexion was full to 20 degrees with pain at 10 degrees. Repetitive testing resulted in additional functional loss with a contributing factor of pain on movement but did not result in any additional loss of range of motion. There was no evidence of localized tenderness or pain on palpation. Muscle strength was normal. There was no evidence of ankylosis or instability. X-rays indicated an old ununited lateral malleolus chip fracture and a calcaneal spur. The examiner diagnosed history of right ankle sprain and residuals of a right ankle fracture.
VA treatment records reflect that in December 2013 the Veteran was fitted for and given an ankle brace.
In his April 2014 substantive appeal, the Veteran reported that he cannot walk without the assistance of a cane and an ankle brace. He reported constant and persistent pain, reduced mobility, and diminished flexion.
VA treatment records reflect that in April 2014 the Veteran reported worsening right ankle pain. He described pain as throbbing and at 8/10, much exacerbated by walking and a dull ache when resting. In May 2014 he reported difficulty bearing weight and using a cane. He was diagnosed with chronic right ankle pain. In July 2014 the Veteran began physical therapy due to increased ankle pain. Muscle strength was reduced and motion was limited due to pain. He continued therapy through November 2014, at which time he requested to discontinue finding minimal improvement.
At his June 2015 hearing, the Veteran reported that he is unable to take long walks and that if he walks 10-15 feet or stands too long, his ankle begins to throb. He stated that his ankle swells up once every one or two months and really agitates him. He reported regular use of a cane to keep from wobbling. He rated his daily pain at 8/10.
The Veteran underwent another VA examination in July 2015. He reported constant pain. He stated he could only walk 25-30 feet with his cane, and that long distances cause swelling. He reported increased pain with standing for 2-3 minutes and flare-ups consisting of right ankle pain when walking and standing. He reported regular use of a brace and a cane. On examination, dorsiflexion was full to 20 degrees and plantar flexion was limited to 40 degrees. Pain was noted in both ranges of motion but it did not result in functional loss. Repetitive testing did not result in any additional functional loss, and the Veteran was examined immediately after repetitive use over time with no additional limitation of functional ability. There was objective evidence of pain on weight bearing but not of localized tenderness, pain on palpation, or crepitus. Muscle strength was normal and there was no evidence of ankylosis. There was no evidence of instability or dislocation. There was no indication or history of shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus or talus, or astragalectomy. The examiner diagnosed residuals of a right ankle sprain, and found that the disability impacts his ability to work through difficulty walking or standing for periods of time. The examiner found that it impacts moderate but not mild physical and sedentary employment.
In an April 2016 addendum, the July 2015 VA examiner noted that the Veteran reported prolonged standing or walking caused his ankle to flare up. Flare-ups subsided after resting or avoiding such activities. The examiner noted that the right ankle disability would not cause functional impairment in terms of sedentary work or the ability to perform the activities of daily living.
The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's right ankle disability. His current 10 percent rating is warranted for moderate limited motion. Higher or additional ratings are available for ankylosis, malunion, astralagectomy, marked limited motion, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence of ankylosis, malunion, or astralagectomy. As discussed above, VA defines marked limited motion as dorsiflexion limited to less than 5 degrees or plantar flexion limited to less than 10 degrees. In contrast, the Veteran's dorsiflexion has never been measured at less than 20 degrees with pain at 10 degrees, and plantar flexion has never been measured at less than 40 degrees with pain at 35 degrees. This is within VA's guidelines for moderate limited motion and not the equivalent of marked limited motion. The July 2015 examination included testing of pain on weight-bearing and nonweight-bearing consistent with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). While the examination did not explicitly test passive range of motion, the Board finds that remand is not necessary for further testing. The active motion testing included in the examination is by the Veteran's own effort, and it is not possible for passive motion-i.e., moving with the assistance of the physician-to produce a more limited range of motion. Furthermore, the Veteran's need for a cane and a brace notwithstanding, the Board does not find that his symptoms are the functional equivalent of the criteria for higher ratings. The July 2015 examiner found physical functional impairment affecting moderate physical activity. The Veteran's description of flare-ups at his hearing indicates that they happen no more often than monthly, and his need for a cane is to be expected with any moderate disability of the ankle. See DeLuca, 8 Vet. App. at 204-07. For these reasons, the board finds that in evaluation in excess of 10 percent is not warranted for the Veteran's right ankle disability.
The Board has considered whether an extraschedular evaluation is warranted for the Veteran's ankle. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.
Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's service connected disabilities, including pain, swelling, and difficulty standing or walking for prolonged periods, are specifically contemplated by or the anticipated consequences of the schedular rating criteria, and no referral for extraschedular consideration is required.
The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his right ankle is more severe than is reflected by the assigned rating. As was explained in the merits decision above in denying a higher rating, the criteria for higher schedular ratings were considered, but the rating assigned was upheld because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).
ORDER
An evaluation in excess of 10 percent for a right ankle disability is denied.
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JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs